VA RATINGS AND SOCIAL SECURITY DISABIILTY

If you are a disabled veteran with a 70 percent or higher VA disability rating, there is an excellent chance you may also qualify for Social Security disability benefits.  The Social Security process is totally separate from the VA process, however a high VA disability rating only helps your Social Security claim.

Because of the similarity between a VA finding of unemployability and what it means to be disabled under the Social Security disability program, it is the rule in many federal circuit courts that VA disability ratings are entitled to “great weight.” (See McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002); Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001); Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984); and De Loatche v. Heckler, 715 F.2d 148, 150 n.1 (4th Cir. 1983).) And one circuit court said that VA disability ratings were entitled to “substantial weight.” (Kane v. Heckler, 776 F.2d 1130, 1135 (3d Cir. 1985).) In addition, Social Security Ruling 06-3p says that the decision and the evidence used to make the VA decision “may provide insight into the individual’s mental and physical impairment(s) and show the degree of disability determined by these agencies based on their rules." 

The Forsythe Firm in Huntsville welcomes veterans who need guidance in applying for Social Security disability benefits or appealing a recent unfavorable decision.  We are local advocates with experience and a good track record in these cases.  There's never a fee unless you are successful (and this includes getting retroactive or back pay)!

We are close to Redstone Arsenal at 7027 Old Madison Pike NW, Suite 108--directly across from Bridge Street.  (256) 799-0297.

SHOWING YOU CANNOT DO THE MENTAL DEMANDS OF UNSKILLED WORK

Unskilled work is the easiest work available from a mental perspective.  Sedentary work is the easiest work available form a physical or exertional perspective.  Yet, even unskilled sedentary work has mental demands which the worker must be able to sustain for 8 hours a day, 5 days a week or an equivalent schedule.  The inability to sustain the mental demands of work, even unskilled sedentary work, is justifiable reason to find that the person is disabled.
 
In Social Security disability cases, decision makers will often deny a claim on the supposition that the claimant can still perform unskilled, sedentary work.  Examples of such unskilled sedentary work might be a surveillance system monitor, or a document preparer.

The mental demands of unskilled sedentary work are defined by SSR 96-9p and SSR 85-15 in the federal regulations.  Those demands include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.

The loss of any of the above abilities will substantially erode the occupational base for sedentary unskilled work and will, therefore, justify a finding of disability (and the award of benefits).

Note that in order to work, a person must be able to meet the mental demands of full time, remunerative work "on a sustained basis."  A sustained basis means 8 hours a day, 5 days a week, or an equivalent schedule.

The customary breaks that would be afforded during full-time unskilled work would be two 15 minute breaks and a 30 minute lunch (meal) break during an 8 hour work day.  If additional breaks are required due to a physical or mental impairment, that may very well erode the occupational base and justify a finding of disability.  Other factors that could erode the occupational base would be excessive absences (more than 1 or 2 days per month), being off task for an excessive amount of time during the day, or being unable to deal with changes in a routine work setting.

These allegations must be supported by objective medical evidence.  It is helpful if a treating doctor or medical professional acceptable to Social Security provides additional opinion evidence as to the existence of and severity of any limitations.

KNOWING SOCIAL SECURITY'S DEFINITION OF "WORK"

Is there work that you are able to do?  If so, you are probably not disabled under Social Security rules.  So, let's consider what Social Security means by the term 'work.'

Work refers to the ability to sustain work activity for 8 hours a day, 5 days per week, or an equivalent schedule.  Anything less than that is not work under Social Security rules.

You are unable to work, for example, if you can......

• work 5 or 6 hours a day but not 8 hours
• work 3 or 4 days a week but not 5 days
• work part-time but not full-time
• work for a few weeks but then have to miss several days due to a flareup
• work for several months but then have to miss a month or two due to illness on a persistent, regular basis
• report to work 5 days a week but have to leave early several times a month because of illness, pain, depression, etc.
• work most days but often have to come in late due to sickness
• work most days but will be absent 3 or more days per month due to illness.

So, the real issue with Social Security is this:  Are you able to work full-time, 8 hours a day, 5 days a week, 52 weeks a year--without missing more than 1 or 2 days per month on a persistent basis?  In other words, can you sustain full time work?  If the answer is no, you are disabled.

Keep in mind that there are many different kinds of work, ranging from very easy work to very difficult work.  Social Security classifies work by its exertion requirement--from sedentary (sitting) to very heavy (lifting 100 pounds or more).  Work is also classified by the skill level required to perform the work:  unskilled, semi-skilled or skilled.

Therefore, it's very difficult to speak of "work" without asking, "What kind of work?"  You may be unable to do some kinds of work but able to do other kinds of work.  Individuals under the age of 50 generally must prove that they cannot perform ANY work available in the national economy.  Persons over the age of 50 may be only be required to show that they are unable to perform their past relevant work (work they performed during the past 15 years).

Other factors that will enter into a decision about your ability to work will include:  education, past work experience, your residual function capacity, and as we just mentioned, your age.

VIDEO HEARINGS? SHOULD YOU ACCEPT OR OPT OUT?

It is no secret that Social Security is backlogged in trying to hold hearings.  And we all know it is taking up to 24 months for a claimant to get a hearing scheduled.  The obvious answer would be for Social Security to hire more administrative law judges; however, Congress simply will not appropriate enough money for that.  So, how does the Social Security Administration react?  By offering claimants the option to have a hearing by video-teleconference (VTC). 

At a VTC, the claimant and representative appear in a hearing center near the claimant's home.  However, the judge may be in another city, even another state.  Witnesses called by Social Security, such as the vocational expert, may be anywhere:  in the room with the claimant, in the room with the distant judge, or even at home and testifying via telephone.

Why would a claimant sign up for a cockeyed arrangement like a hearing by Video-Teleconference?  The main selling point is that it reduces the waiting time and allows a hearing to be scheduled sooner.  I'm not sure this is true in all cases; it might be true in some cases.  But there are downsides to the VTC arrangement for the claimant.  I will admit that I have been involved in some video-teleconference hearings that went smoothly and without objection.  On the other hand, I have been involved in some VTCs that were a nightmare.  You don't know which experience you will have until you get there--and then it is too late.

Here are my main objections to the use of video-teleconference hearings:

One, it's just more impersonal and removed. You aren't able to look people in the eye when you speak to them. And it opens up the possibility of communications problems:  you can't hear the vocational witness because of a poor telephone connection, or similar problems.

Two, and this is my worse fear, you lose the option to appear before a local judge who is known and have a hearing before a judge at the national hearing center in Chicago or some other distant location.  Chances are, I have never met this judge and know next to nothing about him or her.  And the judge's award rates are often much lower than the judges in the local hearing office.  Again, you don't know whether your case is going to the national hearing center or not until it's too late.  Opting out of the VTC hearing at least guarantees that you will get a local judge.

Under current rules, every claimant has a right to opt out of video-teleconference hearings and to  appear in person before a judge.  There are conditions:

1.  You or your representative must opt out of the VTC in writing.
2.  You may only opt out after the request for hearing has been filed and ODAR has sent you the written notice of your right to opt out (which will include a form to opt out of the VTC).
3.  You must opt out within 30 days of receiving the above notice (and obviously before the hearing has been scheduled).

Will opting out of a VTC cause a delay in getting your hearing scheduled?  It may.  I honestly don't believe there is any way to know that for sure on a case by case basis.  While I am aware that my clients are often suffering financially and need closure as soon as possible, I am also aware that I need to give my client the best chance I can of getting an award rather than a denial.  Claimants should know that they have the right to get an in-person hearing, if they follow the rules set forth by Social Security.

WHAT IS A 'PARTIALLY FAVORABLE' SOCIAL SECURITY DECISION?

You attended a hearing on your Social Security disability claim.  A few weeks later, you receive a Notice of Decision in the mail that says you have received a Partially Favorable decision.  Does this mean that you are only partially disabled, not fully disabled?

ANSWER:  No.  Social Security does not make awards for partial disability.  You are either disabled or not disabled.  There is no such category as "partially disabled" within Social Security law.

A "partially favorable" decision means that the administrative law judge has found you to be disabled.  However, he or she has changed some material fact in your application.  Most often, this change involves the established onset date--the date you were found to have become disabled.  For example, in your application you may have alleged that you became disabled on June 1, 2012.  After reviewing the facts of the case, the judge may have decided that you did not become disabled until September 1, 2012.  Therefore, he will amended the onset date to September 1, a material change in the application. 

This change will affect the amount of your back pay.  In short, you will not be paid for the months June - August, 2012, a loss of 3 months of  benefits.The amount of your monthly benefit will not be affected.  You are still considered disabled, but for not as long a period as you originally claimed.  Since you lost part of your period of disability, thus part of your back pay, the decision is partially favorable.  In other words, it is not as favorable to you as it would have been if the judge had found that you became disabled in June instead of September.

I often encounter well meaning public officials who believe that a "partially favorable" decision means that the claimant is only "partially disabled."  This is not the case because, as I have said, Social Security never makes any award for a "partial disability."  You are either disabled or you are not disabled - nothing in between.  The date on which you became disabled is an example of why a decision might be "partially favorable.:"

The confusion is complicated by the fact that some agencies, such as the Veterans Administration, do make partial disability awards.  A VA claim decision may find that a veteran is 50 percent disabled, or 80 percent disabled, for example.  However, Social Security will never make such an award.  With Social Security, it is all or none.

SOCIAL SECURITY DISABILITY: WHAT YOU WISH YOU HAD KNOWN

You Must File a Timely Application.  You must apply for Social Security disability benefits within 5 years after you stop working.  Your insured status will expire, making a new claim impossible.  If there are gaps in your work history, you may have even less time to file a new claim.  Don't wait too long to file after you stop working.

You Must Have Enough Quarters of Work.  You become an insured person under the Social Security Act by working and paying FICA taxes.  Most adults need 20 quarters of work to be covered.  These 20 quarters generally must have been accumulated within the most recent 10 year period prior to filing a claim.  Very young individuals might need less than 20 quarters of work.

Your Disabling Condition Must Last At Least 12 Months.  Short term disability lasting less than 12 consecutive months is not covered by Social Security.  You must have an impairment that has lasted, or can be reasonably expected to last at least 12 months.

You Cannot Be Working When You Apply.  You may not be working at "substantial gainful activity" during the period you wish to receive disability benefits.  In 2015, Social Security classifies substantial gainful activity as earnings/wages of at least $1,090 per month.

You Must Have Medical Treatment.  Under Social Security regulations, a disabling impairment must be medically determinable.  Medical records must be available to support the impairment.  Medical treatment should be consistent and recent.

You Cannot Depend on a Social Security Doctor's Examination.  Social Security may send you to a doctor with whom they contract to perform an examination.  This exam will be brief and superficial.  In our experience, these exams fail to help the claimant 99% of the time.  Social Security will use this exam to deny your claim.

You Need Support From Your Own Doctor.  According to Social Security regulations, much weight will be given to opinions of your own treating doctor(s).  Your doctor should provide support and this includes more than just routine medical records. Try to get your doctor to provide you with a Medical Source Statement that lists your functional limitations, such as restrictions in sitting, standing, lifting, bending, kneeling, etc.  Mental restrictions, such as concentration and memory, should also be documented.

You May Need To Be Examined By a Specialist.  20 CFR 404.1527 provides that extra consideration may be given to a doctor who is a specialist practicing in his/her field of medicine.  For instance, if you have a bad back you may need an orthopedic specialist.  For arthritis or fibromyalgia, you would need to consult a rheumatologist.

You Must File An Appeal Within 60 Days If You Are Denied.  Only about 30 percent of applications are approved by Social Security at the initial level.  The other 70 percent must be appealed.  The 60 day deadline is absolute.  If you do not appeal within the 60 days your claim dies and there is no appeal.  Do not wait on medical evidence or anything else.  File your appeal immediately, then work on whatever needs to be done to shore up the case.

Most Appeals Are Handled By a Professional Disability Advocate or Attorney.  Social Security appeals comprise a highly specialized field and require knowledge, skill and experience.  Contact a professional advocate, such as the Forsythe Firm, to help you with the appeal.  We offer free claims evaluation and never charge a fee unless you win.  We will also help insure that you receive maximum benefits, including back payments.

VETERANS MAY GET EXPEDITED DISABILITY PAYMENTS

Veterans may get expedited claim processing for Social Security disability benefits.

To get expedited processing, veterans must self identify and have a 100 percent permanent disability rating from the Veterans Administration.

By "self identify," we mean that the veteran must inform Social Security of their 100 percent VA disability rating at the time the application is filed.  We recommend sending a copy of both your DD-214 form and your VA awards letter that shows the percentage of disability award.

Does a 100% VA disability award guarantee approval of Social Security benefits?  No.  While a VA award does not automatically qualify for Social Security disability benefits, it does qualify for a much faster processing time--that is, a much quicker answer.  And, since the VA disability evaluation is similar to the Social Security evaluation process, the VA award can work in your favor.

If a vet receives Social Security disability benefits, will it reduce the VA benefits?  No.  Veterans paid into the Social Security trust fund during their military careers and may be entitled to Social Security benefits in addition to VA benefits.

What about veterans with a less than 100% VA award?  May they still be eligible for Social Security disability benefits?  Yes, of course.  

What if a veteran is not able to perform military duties but is still on active duty and is receiving full military pay?  He or she may still be eligible for Social Security disability benefits.  The key issue is whether or not the individual is able to perform the job, not whether he or she is receiving military pay.  Thus, a veteran should apply immediately for Social Security disability and not wait for a discharge from military duty, which would waste unnecessary time and lose benefits.

The Forsythe Firm is honored to review disability cases for veterans and help them decide the best course of action to receive Social Security disability benefits.  Consultations are absolutely without cost or obligation.  We only charge a fee if we represent you, win your case, and also recover past due or retroactive benefits (in a lump sum).  Please contact Charles Forsythe in Huntsville at (256) 799-0297.

Our office is located at the intersection of Old Madison Pike and Governors West directly in front of the Bridge Street Town Centre, near Arsenal Gate 2.